The Department of Labor has released a final rule that implements the Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The final rule also revises certain existing regulatory provisions, and removes the FMLA optional-use forms from the appendices of the FMLA regulations. The rule will become final 30 days after publication in the Federal Register.

Military Service Member Exigency and Caregiver Leave

The FY 2010 NDAA expanded the military leave provisions already included in the FMLA by the National Defense Authorization Act for Fiscal Year 2008. The FY 2010 NDAA permits family of regular Armed Forces members, as well as family of Reserve and National Guard members, to take up to 12 weeks of job-protected leave in a 12-month period for a “qualifying exigency” arising out of the active duty or call to active duty status of a spouse, son, daughter or parent. A broad range of events and activities are considered qualifying exigencies, including short-notice deployment, child care and school activities, financial and legal arrangements, rest and recuperation, post-deployment activities, counseling, and military events and related activities. Prior to the FY 2010 NDAA, exigency leave was limited to family of Reserve and National Guard members only. The NDAA also adds the requirement that the Armed Forces member must be deployed to a foreign country in order for eligible family members to take leave for a qualifying exigency. Some additional highlights in the final rule related to qualifying exigency:

• Expansion from five to 15 days the amount of “Rest and Recuperation” FMLA leave an eligible employee would be able to take to spend with the covered family member; and
• Creation of a new qualifying exigency leave category for parental care (i.e., care for a military member’s parent when the parent is incapable of self-care).

The FY 2010 NDAA also extends military caregiver FMLA leave to include care for certain veterans in addition to active members of the Armed Forces. Military caregivers may take up to 26 workweeks of leave in a 12-month period to care for a covered service member or veteran with a serious service-related injury or illness. This leave may be initiated up to five years after the service member leaves the military. Some additional highlights from the final rule related to military caregiver leave:

• Expansion of the definition of “serious injury or illness” to include pre-existing injuries or illnesses of covered service members that were aggravated in the line of duty, rather than just those that were incurred in the line of duty; and
• Creation of a broad definition for “serious injury or illness of a covered veteran.”

Airline Flight Crew FMLA Entitlement

The Airline Flight Crew Technical Corrections Act (AFCTCA) allows more airline employees to avail themselves of leave under the FMLA as well. The Act’s intent was to close a perceived loophole in the FMLA’s hours of service requirements for pilots and flight attendants whose unconventional work schedules often failed to qualify them for FMLA leave. In order to be entitled to FMLA leave, employees must have worked at least 1,250 hours during the 12-month period preceding the start of leave, which equates to at least 60 percent of a standard 40-hour work week. Under the Fair Labor Standards Act (FLSA), which is used to determine the number of hours worked for FMLA purposes, some courts concluded that the time pilots and flight attendants spent on the job between flights and on mandatory standby did not count as “hours worked.” The AFCTCA provided that the hours pilots or flight attendants work and/or for which they are paid – not just those spent in actual flight – count toward the minimum hours calculation. Additional highlights from the final rule related to airline flight crew FMLA entitlements:

• Listing of all special requirements applicable only to airline flight crew employees and their employers in a revised Subpart H of the regulations;
• Adoption of a uniform entitlement for airline flight crew employees of 72 days of leave per applicable leave year for one or more FMLA-qualifying reason and 156 days of military caregiver leave; and
• Imposition of special recordkeeping requirements on employers of airline flight crew employees.

Revisions to Other Regulatory Sections

In addition to adding and revising regulatory provisions pursuant to the FY 2010 NDAA and AFCTCA, the DOL’s Wage and Hour Division (WHD) also revised other parts of the existing FMLA regulations in the final rule. For example, the rule:

• Clarifies the rules for calculating intermittent or reduced-schedule FMLA leave, including provisions related to increments of leave and an explanation of the physical impossibility rule;
• Adopts language changes intended to ensure consistency with other statutes (e.g., the Uniformed Services Employment and Reemployment Act);
• Sets forth employers’ obligation to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 in connection with FMLA administration; and
• Updates the FMLA optional-use forms to reflect statutory changes and to add a new optional-use form for the certification of a serious injury or illness for a veteran.

Notably, the WHD removed the FMLA optional-use forms from the regulations’ appendices. Employers may now locate the optional-use forms on the WHD’s website. The DOL comments that any future substantive changes to the forms will effectively remain subject to normal notice and comment rulemaking since the authority for the content of the forms is set forth in the FMLA statute and its regulations. The agency further states that non-substantive changes to the forms also would be subject to public comment via the process established by the Paperwork Reduction Act of 1995.

For more information and insight related to the final rule, see Littler's ASAP: DOL Releases New Regulations Expanding Leave Entitlement for Military Caregivers and Flight Crew Members. The WHD has also provided on its web page fact sheets, a set of frequently asked questions, and additional guidance on these changes.

Photo credit: Kirby Hamilton